Read on for a New Year’s message from FDAP and important information about changes at the California Supreme Court; Wende review in 1172.6 and other post-conviction appeals after People v. Delgadillo; upcoming MCLE opportunities; and recent panel victories.
FDAP Extends a Warm Happy New Year To All
Last year brought significant changes to FDAP and appellate practice in the First District, including the first increase to the panel pay rate in more than five years, the resumption of in-person oral argument, and the launching of the FDAP MCLE video library. FDAP also welcomed five new board members, all of whom share our deep commitment to ensuring an equitable and compassionate system of justice for our clients.
And 2023 brings us more change. At the California Supreme Court, Chief Justice Patricia Guerrero took office on January 2, 2023, the first Latina and third woman to hold that position. Associate Justice Kelli Evans was also sworn in.
The Legislature has also continued efforts to address systematic bias and racism in the criminal justice system. Effective January 1, AB 256 amended the California Racial Justice Act to provide for retroactive application, phased in over several years. For information about AB 256 and other new laws effective in 2023, be sure to review FDAP’s 2022 legislative roundup slideshow and MCLE video. In 2023 and beyond, we will vigorously use the RJA and its recent amendments to seek remedies for racial injustices suffered by our clients.
To our panel, we thank you for all your hard work in 2022 and your steadfast commitment to our mutual clients. We look forward to more collaboration in 2023!
Happy New Year to all!
New Chief Justice Patricia Guerrero: Update Your Templates
New Chief Justice Patricia Guerrero officially assumed office on January 2, 2023. Be sure to review and update your petition for review and other templates to reflect the change.
Delgadillo And No-Issues Briefs in Section 1172.6 Appeals
In People v. Delgadillo, the California Supreme Court recently clarified procedures for appellate review of section 1172.6 resentencing appeals where counsel files a no-issues brief. These procedures also apply to appeals from denials of other post-conviction motions and petitions where the appeal is not the client’s first appeal of right. FDAP has prepared an update on the procedures for filing no-issues briefs in these cases, as well as a sample client letter. In cases where a no-issues brief has already been filed, attorneys should ensure that the client has been advised consistent with Delgadillo.
Upcoming MCLE Opportunities
Office of the State Public Defender
Racial Justice for All – Moving Forward and Looking Back
January 11, 2023, 12:15 p.m.
AB 256 passed! The RJA now applies retroactively in phases and there are a number of other ways the RJA will be impacted starting January 2023. This training is for both trial and appellate counsel and will focus on 1) the changes created by AB 256; 2) raising claims in a timely fashion and avoiding waivers of claims; and 3) strategic consideration when raising these claims post-conviction. Register here.
Criminal Appellate Defense Counsel
Substance Abuse in the Legal Profession: Prevention, Detection, and Treatment
January 11, 2023, 12 p.m.
In this presentation, David Mann from The Other Bar provides a review of the brain chemistry of addiction and alcoholism, as well as a discussion of the behavioral and health consequences of the disease. Insights are offered into the personality traits of attorneys and the qualities of the legal profession that combine to make lawyers significantly more susceptible to addiction, and more difficult to treat, than the general population. Mr. Mann approaches this very serious topic in a manner that incorporates humor and irony and invites attorneys to engage in a bit of sometimes much-needed self-reflection. Register here.
Central California Appellate Program and Sixth District Appellate Program
CCAP and SDAP are co-hosting the following Zoom webinars. Registration information will be available soon on the CCAP and SDAP websites.
Pivoting Past the Pandemic: Work-Life Balance for Legal Professionals and Maintaining Competency
January 18, 2023, 1 p.m.
Lita Abella, a Senior Program Analyst at the State Bar and MCLE presenter for the Lawyer Assistance Program (LAP) will cover identifying and detecting substance use and mental health issues, identifying patterns and behaviors of incompetence, learning about work-life balance and how to avoid burnout, discussing how substance use and mental health issues can lead to detrimental and deadly consequences, developing a self-care plan and wellness strategy, knowing where to find help – LAP and other resources. The presentation is interactive and attendees will need their smart phones. The training qualifies for 1 hour of competence issues MCLE credit.
Current ICWA Issues in Dependency Cases
January 26, 2023, 12 p.m.
Sean Burleigh and Michelle Pena will cover recent dependency cases addressing ICWA and current trends, including cases pending in the California and United States supreme courts. Written materials from CCAP Staff Attorney Siena Kautz will be provided. The training qualifies for 1.5 hours of general MCLE credit.
First District Panel Victories
Below are a few noteworthy First District victories from this past month. These opinions and many more can be found on the Panel Victories page of FDAP’s website.
A164028 – [Unpublished Opinion | Panel Attorney Jeffrey Glick] The Court of Appeal reversed appellant’s involuntary manslaughter conviction (Pen. Code, § 192, subd. (b)) where the trial court erred in admitting extensive hearsay evidence describing the decedent’s attack and failed to provide a limiting instruction, despite correctly ruling in limine that only statements describing the decedent’s past or present pain (and not how he was injured and what happened) could be admitted for their truth under Evidence Code sections 1250 and 1251. The Court further held that the error was not harmless where the primary disputed issue at trial was the cause of the decedent’s death and where the prosecution heavily relied on the hearsay evidence at trial.
A161927 & 162077 – [Unpublished Opinion | Panel Attorneys Barry Karl & Robert Angres] In this consolidated appeal, the Court of Appeal held that Assembly Bill 333 applies retroactively to Penal Code section 186.22(b)(1) (gang enhancement). (People v. Tran (2022) 13 Cal.5th 1169.) The Court further held that the amended definitions of “criminal street gang” and “pattern of criminal gang activity” in A.B. 333 apply retroactively to Penal Code section 182.5 (gang conspiracy).
A164945 – [Unpublished Opinion | Panel Attorney Geoff Jones] The Court of Appeal reversed the trial court’s denial of appellant’s Penal Code section 1172.6 resentencing petition, finding insufficient evidence that appellant acted with reckless indifference to human life. While the Court noted that appellant’s statement that, “he didn’t want to kill the [victim], however if he had to, he would,” might constitute substantial evidence of reckless indifference under different circumstances, here, there was no evidence that appellant was armed, knew the actual killer was armed, had previously talked to the actual killer about the use or a gun, or knew the actual killer had access to guns. Nor was it even apparent that appellant knowingly participated in an armed robbery. The Court, therefore, remanded the matter to the trial court with instructions to grant the petition and resentence appellant.
A164059 – [Unpublished Opinion | Panel Attorney Maureen Bodo] The Court of Appeal held that the trial court erred in refusing to consider and rule on the merits of appellant’s claims of error in the probation report.